Ross Case: Advocacy Roles Shifting

February 16, 2005|By LYNNE TUOHY; Courant Staff Writer

Chief Public Defender Gerard Smyth said Tuesday he sees no reason for his office to seek once again to intervene in behalf of Michael Ross because he believes court-appointed attorney Thomas Groark will ``zealously'' argue that the serial killer is mentally incompetent to forgo furtherappeals and choose execution.

Ross now has a new execution date -- May 11-- and faces a fresh set of challenges to his competence. The next evaluation is expected to focus on whether restrictive death row conditions have driven him to despair and to choose ``state-assisted suicide'' by waiving further appeals.

Groark on Tuesday -- commenting for the first time since his appointment as special counsel in the case last Thursday -- said the assignment is itself the greatest challenge facing him.

``The total assignment is the challenge,'' said Groark, a prominent securities lawyer and partner in the state's largest law firm -- Day Berry & Howard. He is volunteering his services, and said his firm has also provided two lawyers -- Michael Shea and Jim Mahanna -- to assist him.

Within hours of Groark's appointment last Thursday, all three lawyers met with Smyth and Patrick Culligan, who heads the elite capital defense unit of Smyth's office.

``I am becoming familiar with the background and have spoken to a number of people,'' Groark said. He does not believes he is handicapped by the fact that his specialty is securities and corporate, rather than criminal, law.

``Not for this limited issue, no,'' Groark said. He said he has dealt with the issue of competence in civil cases. ``Competence does come in a variety of areas of litigation.''

Superior Court Judge Patrick Clifford has yet to schedule hearings in Ross' renewed bid to proceed to his execution.

Ross' last execution date of Jan. 26 was postponed four times as Smyth's office and other defense attorneys filed appeals and tried other legal machinations to halt the execution. The U.S. Supreme Court twice vacated stays of execution -- the last time four hours before Ross' rescheduled execution date of 2 a.m. Jan. 29.

It was Ross' handpicked lawyer, T.R. Paulding, who ultimately halted the execution that night, hours after a federal court judge had instructed him to reconsider his advocacy of Ross' execution and threatened to go after Paulding's law license if he was found to have been derelict in his obligation to examine Ross' competence and present all relevant information to the court.

Smyth's office, which had represented Ross for 17 years, had argued since Dec. 1 that Ross is not mentally competent, and sought to intervene in his behalf. Clifford denied their request to intervene and, after hearing from court-appointed psychiatrist Michael Norko Dec. 28, deemed Ross competent to make a knowing and voluntary waiver of further appeals still open to him and opt for death.

Clifford's ruling was upheld by the state Supreme Court, but Smyth's lawyers found a sympathetic ear in Chief U.S. District Judge Robert N. Chatigny, who ultimately threatened Paulding's law license. Paulding moved to reopen the competency hearing Jan. 31 after Norko agreed that some of the evidence in the possession of the public defenders might have prompted him to reach a different conclusion about Ross' state of mind.

Smyth said his office is prepared to defer to Groark, confident that Groark and his associates ``will zealously advocate the position we've taken right along -- that Ross is mentally incompetent to waive his appeals. There is no reason for us to separately intervene, and we won't do so.

``We will work closely with them, provide them all the information we have and give them access to our witnesses and experts,'' Smyth said.

``In the final analysis, the court has ordered exactly what we were requesting -- a full and adversarial competency hearing,'' Smyth said. ``The fact that we don't get to litigate it ourselves really is unimportant.''

Groark confirmed that defense attorney Jacob ``Jack'' Zeldes first approached him about filling the role of advocating Ross' mental incompetence, but would not elaborate on when Zeldes first made overtures. Paulding had sought the counsel of Zeldes' law partner, David Atkins, on the ethical tug of war of representing a client who wants to be executed, while at the same time fulfilling his obligation to the court.